Alcohol Abuse and Accommodation

By Jeff Palamar on 2013/04/17

Under human rights legislation, alcoholism is treated as a disability which warrants accommodation to the point of undue hardship.

A common mistake is assuming that misuse of alcohol necessarily equates to alcoholism. Making bad lifestyle choices and abusing alcohol is not the same as being an alcoholic, and does not require accommodation to the point of undue hardship. Rather, if such choices impact work, discipline can properly follow.

In practice what is an employer to do when faced with an employee who is abusing alcohol and work is impacted? A recent arbitration between The Royal Canadian Mint and The Public Service Alliance of Canada demonstrates how an employer appropriately dealt with a difficult fact situation involving a long service employee with uncertain alcohol issues.

The Facts

The grievor was a 17 year employee who worked as a lead hand in a manufacturing facility. He filed a harassment complaint against his supervisor, but failed to attend an off-site mediation session (which was to be on a paid work day) scheduled with a third party mediator for 8:00 a.m., and failed to call in until 3:15 p.m. that same day. This was treated as a culminating incident and he was fired.

The grievor’s explanation was not seen as credible. He claimed that while leaving for the mediation he had been robbed and assaulted, with two unknown assailants taking his cell phone, keys and wallet. He claimed that he had returned to his apartment, and because he had no land line and was too scared to seek out a pay phone or a neighbor, he simply stayed in the apartment until that afternoon. He testified that at about 1:30 p.m. there was a knock on his door and he found that the stolen items had been returned to his mailbox. He retrieved them, retreated to his apartment and contacted the employer 1 ¾ hours later when he telephoned in.

The employer met with the grievor and a union representative a few days later, and listened to the grievor’s story. The grievor volunteered that this was all because of a domestic problem he has having with a woman (he claimed that she was friends with gang members who had attacked him) and was not due to alcohol use on his part.

The employer considered the story in the context of the grievor’s record, which included numerous oral and written warnings as well as two suspensions, all related to attendance, alcohol intoxication at work and poor attitude. It did not believe the grievor was being truthful and so terminated his employment.

The Arguments

The union argued that the failure to appear at the mediation was not culpable behavior and so was not a culminating incident, that the disciplinary record should be considered in the context of the grievor suffering from a disability (alcoholism) and that the grievor’s struggle with alcohol should at least be considered a mitigating factor, with post-discharge evidence of significant rehabilitation efforts being supportive of reinstatement without back pay.

The employer argued that the missed mediation and no call was a culminating incident justifying dismissal on the basis of the overall record. The employer denied that there was any proof that the grievor was an alcoholic and so accommodation issues were not relevant. The employer also argued that the grievor had missed the mediation and been late in calling in either because of domestic problems or alcohol use. If because of domestic problems, then alcohol problems were irrelevant. If because of alcohol use, then he had been dishonest with the employer and the arbitrator and that in and of itself was inconsistent with reinstatement.

Review Of The Facts

The grievor’s job was safety sensitive. He worked as a lead hand, and supervised other employees in a fairly isolated area of the plant, with fast moving, high powered and potentially dangerous machinery nearby.

The employer had a policy mandating a zero tolerance approach to alcohol consumption by employees in safety sensitive positions. It offered an impressive employee assistance program (EAP) to help employees with alcohol addiction or abuse problems, on a strictly confidential basis and on the promise that no disciplinary action would be taken against anyone for having sought help for an alcohol problem.

The collective agreement had a two year sunset clause in it which required any record of infractions to be destroyed two years after the date on which the discipline was imposed. This meant that while the grievor’s long service could be considered, it could not be inferred that it was discipline free.

In the relevant two year period, the grievor’s attendance record was remarkably poor. On many occasions he missed time altogether or was late, either with a call or not. He took substantial sick time, and often took advantage of the Mint’s flexibility by taking last minute vacation, holiday, sick or personal days.

Though there was discipline the employer was also accommodating. It offered assistance if needed on the assumption that perhaps there was a problem of some sort, and counseled about the importance of attending work. In contrast, the grievor’s attitude was argumentative. His told the employer to keep its help, as it was his time to use as he chose. He filed many grievances but always abandoned them.

At the hearing, the grievor insisted that he missed the mediation because he had been mugged, but also claimed to be an alcoholic. He said that the employer should have known about his alcohol problems, because over the years there had been various interactions involving alcohol;

• Seventeen years before, a supervisor had spoken to the grievor about a pattern of poor attendance. The grievor confessed in response that he had been drinking heavily and using drugs which caused him to miss work. He was referred to the plant nurse and AA and was able to address his issues at the time.

• Some three or four years before, a supervisor had received a complaint of the grievor smelling like alcohol while at work, and advised him that he could not attend work in that state.

• Less than three years before, the grievor allegedly told management that he was a “heavy drinker”. Management denied that he had said this, and the arbitrator noted that even if he had, it was only a “limited” disclosure.

• About ten months before the dismissal, the grievor attended work an hour late for a night shift. He smelled of alcohol and was acting unusually. Upon questioning he admitted that he had been drinking before coming to work. He became belligerent and was ordered to go home. He left the plant stating that he was going to “bury” his supervisor. The next day, he said that he had been drinking at a pre-work barbeque and must have consumed more than he originally thought. He stated that he only had a few hours of sleep and then went to work not appreciating that he still smelled of alcohol. He was suspended for three days and grieved that.

• About six months before the dismissal, the grievor was scheduled for a day shift and arrived two hours late without any call or warning in advance. He presented smelling of alcohol, having slurred speech and obvious difficulty concentrating during a conversation. He claimed that he had been drinking the night before but had stopped by midnight. He was sent home and in response threatened to name other employees who supposedly were regularly drinking and smoking pot before work. He was invited to provide details, but he never did. The grievor was given a ten day suspension for this, and he grieved it.

• At a meeting with a union representative the employer told the grievor that this was his last chance and that he was encouraged to seek assistance through the EAP if he needed help. At the arbitration, the employer emphasized that it had no knowledge as to what was going on in the grievor’s personal life, and no evidence of alcohol addiction, but nonetheless because of the repeated incidents involving alcohol, felt it only appropriate to raise this with him.

• Three months before the dismissal, the two suspension grievances were presented at second level. The union attended with the grievor and made a presentation detailing the facts but also asking questions about whether the grievor had a drinking problem and whether treatment was required. The grievor sat silently through the process. At no time did anyone say that in fact he was an alcoholic. The grievances were later abandoned.

The grievor did not take the opportunity to get help through the EAP, and until after the dismissal, never did claim to the employer that he was an alcoholic. He acknowledged that even his family was unaware of the extent of his drinking.

Two months before the dismissal, a performance review was done which rated the grievor’s technical skills quite positively, but cited attitude and attendance problems and overall gave a rating of requiring improvement. The grievor responded very negatively and refused to accept personal responsibility for his situation. He was argumentative and not open to change.

In the more than two years since dismissal, the grievor had taken substantial steps to turn his life around. He had attended numerous treatment programs and had maintained sobriety since the month after dismissal. He was still undergoing treatment at the time of the hearing. Inexplicably, he still was involved intermittently in the “dysfunctional” domestic relationship which, according to his testimony, had caused the culminating incident.

The Decision

The arbitrator found that the no show for the mediation and the late call amounted to a culminating incident. Employees have the obligation to make all reasonable efforts to attend work or notify an employer that they cannot attend, and the grievor had failed to do so.

The arbitrator did not accept the grievor’s version of events but was unable to conclude what really had happened. He suspected that alcohol might have been involved, but made no finding as to that. Rather, he concluded that the grievor had failed to attend a scheduled work meeting and did not call in until some seven hours later without any reasonable justification. On that basis, this was a culminating incident which allowed a review of the entire disciplinary record.

The arbitrator disagreed with the argument that the employer should have known there was an addiction and should have somehow forced an intervention or treatment, with the disciplinary record to be considered in that light. He emphasized that the grievor had never been diagnosed with an addiction, and that the grievor himself had never claimed to the employer that he was an alcoholic. While the grievor’s medical doctor did testify as to alcohol abuse, he had stopped short of any diagnosis of alcoholism.

Despite no medical evidence, the union had argued that based on its own assessment of the American Psychiatric Association’s DSM on substance use disorders, the grievor had a substance abuse problem.

The arbitrator rejected this argument as it would be inappropriate to rely upon such a conclusion for a “pivotal finding” in the case. He found that there was no proof of alcoholism, but only poor personal choices. Therefore, there was no accommodation requirement and no reason to use the “hybrid approach” to culpability (and interpret actions as less blameworthy due to lack of control).

The arbitrator did not say that only expert evidence would suffice to prove alcoholism, but stated that certainly this was the preferred means. Here, the evidence showed irresponsible drinking but without more could not be taken as proof of an addiction. Without medical evidence to support a finding of alcoholism, the arbitrator refused to look at the past disciplinary record in anyway as non-culpable.

The arbitrator found that the employer had tried to help, but the grievor had rejected such offers and that really nothing more could have been done. The arbitrator found that the employer was not obliged to force itself into the grievor’s personal life and demand that he take treatment.

Looking forward, the grievor’s post-discharge rehabilitation efforts were impressive, but still not enough. The arbitrator was troubled that even as of the arbitration, the grievor was blaming the employer for not doing more for him. The arbitrator took this as a continued deflection of personal responsibility and inconsistent with the argument that he had rehabilitated himself and was fit to return. This was compounded by the ongoing “dysfunctional” relationship and the fact that the grievor lied at the arbitration regarding the culminating incident. The arbitrator concluded that the employer’s decision was justifiable at the time it was made and remained so, despite post-discharge events.

What Lessons Can Be Learned?

• Alcohol abuse is not the same as alcohol addiction and does not necessarily require accommodation or a hybrid approach in terms of assessing misconduct;

• Employers are not necessarily required to intervene into employees’ personal lives and insist on treatment for perceived personal problems;

• Employers should remain open and prepared to provide assistance, if an employee is perceived as needing help or asks for help for an alcohol problem;

• Ultimately, it comes down to an employee to do what is necessary and take responsibility for his or her own actions in life.

 

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